With Paladino’s Job at Stake, Right to Free Speech Is His Defense

Members of the Buffalo Board of Education contend that Carl Paladino, a member who had made racist comments about the Obamas, disclosed confidential information.CreditCreditHeather Ainsworth for The New York Times

ALBANY — Carl Paladino, a wealthy real estate developer who once made a bombastic bid for governor of New York, appeared at a hearing here Thursday that will determine whether he remains on the Buffalo Board of Education.

Several members of the school board have demanded that the State Education Department remove him, saying he revealed confidential information. But Mr. Paladino’s lawyers said those charges were a pretext, and that board members want him ousted because he made racist comments about President Barack Obama and Michelle Obama. As offensive as those remarks were, the lawyers said, Mr. Paladino had a constitutionally protected right to make them.

“The board decided to use Paladino’s comments to finally topple him,” said Dennis C. Vacco, one of his lawyers and a former state attorney general. “And, frankly, that’s why we’re here today.”

The relationship between Mr. Paladino and many of his colleagues on the school board has long been contentious. He filed two petitions to remove the board president, Dr. Barbara Seals Nevergold, in 2013, the first year he was on the board. Both petitions were dismissed. During his opening statement, Mr. Vacco suggested that Mr. Paladino’s support for President Trump might be another reason his fellow board members are eager to force him out.

The tensions between them exploded in December after Mr. Paladino made offensive remarks about the Obamas in a local weekly newspaper. The newspaper, Artvoice, sent a survey to members of the Buffalo community asking about their hopes for 2017. Mr. Paladino said he hoped Mr. Obama would die of mad cow disease and that Mrs. Obama would “return to being a male and let loose in the outback of Zimbabwe where she lives comfortably in a cave with Maxie, the gorilla.”

Mr. Paladino apologized. He also said he meant to send the remarks to friends, not the newspaper, but he hit “reply” instead of “forward.” About a week after his comments were published, the Buffalo school board demanded his resignation, which he declined to provide.

Not long after, the board filed a petition with the Education Department to have Mr. Paladino removed from his position, saying he had twice disclosed confidential information. In one instance, they said that he shared information with reporters about a legal dispute the board was having with a contractor, which had been discussed with the board’s lawyer in executive session, meaning it was closed to the public. Then in January, Mr. Paladino published an article in Artvoice about contract negotiations with the teacher’s union, which occurred in the fall.

Mr. Paladino’s lawyers disputed that his disclosures were improper, arguing that the closed-door meetings had not been convened correctly. But the thrust of their argument was that the board wanted him removed after his comments about the Obamas, and when it learned he could not be removed for what he had said, it looked for another reason. Such an effort violates his right to free speech, the lawyers said. Last week, Mr. Paladino sued members of the board who are trying to remove him, seeking damages.

Frank W. Miller, a lawyer representing school board members, has conceded that Mr. Paladino’s statements were protected speech but said that the board was not trying to remove him for those statements. He said Mr. Paladino’s disclosures were an “unmistakable rejection” of his oath of office that made it difficult for the board to have “open, fair, and candid discussion.” In her testimony Thursday, Dr. Nevergold agreed.

“It was quite disturbing to have a board member to go out and reveal executive session information knowing we were in the process of negotiating a contract,” she said. “It really disrupts the ability of the board to function appropriately.”

This was the first day of testimony in a hearing that is expected to stretch into early next week. MaryEllen Elia, the state’s commissioner of education, is presiding over the hearing and will decide whether Mr. Paladino may remain on the board.

Luis Ferré-Sadurní reported from Albany, and Elizabeth A. Harris from New York

A version of this article appears in print on , on Page A25 of the New York edition with the headline: Free Speech Is Defense For Paladino At Hearing. Order Reprints | Today’s Paper | Subscribe